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Subject_1 Parent and Child Subject_2 Filiation and Aliment Subject_3 Evidence Subject_4 Presumption — Intercourse subsequent to Conception of Child. Facts: Where in an action of filiation and aliment the defender admits connection during the term of pregnancy, and it is proved that he has had the same opportunity of intercourse with the pursuer both before and after the date of the conception of the child, that admission, coupled with the pursuer's oath, may be sufficient to induce the Court to grant decree in her favour.
The Sheriff-Substitute ( Barclay ) found, “as matters of fact—1st, The pursuer was delivered of a female child on 28th November 1882; 2d, The defender admitted sexual intercourse with the pursuer (not on the record but on oath) in the month of July 1882; 3d, That the facts and circumstances were not sufficient to fix the paternity of the child born in November 1882 on the defender: Therefore assoilzied him from the prayer of the petition.
In this case there is no such proof of familiarities at the time of the conception as could have fixed the paternity of the child conceived at that time. The only proof is the pursuer's mother, and a hasty expression spoken by the defender to an inquiry put to him by Winton. Had this case been otherwise proved, it would have been almost fatal to his defence, seeing that he had no cause for making inquiry at Winton had he himself been Page: 46 ↓
On the whole, as has already been said, the Sheriff has found the case one far from being free of difficulty, but, on the whole, the evidence does not fully support the pursuer's case of the child born in November 1882.”
Lord Justice-Clerk —I have no doubt whatever about this case. The Sheriff-Substitute calls attention to the fact, and it is not immaterial, that the admission on which so much is founded was not on record. The defender denies there entirely any connection with the pursuer, and there is no qualification of it. When examined he not only admits the connection, but founds on a long conversation as to the period when the connection took place.
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